The Ninth Circuit Court of Appeals has rejected photographer Co Rentmeester’s copyright infringement claim against Nike, affirming a lower court decision that Nike’s famous “Jumpman” logo and the photograph on which that logo was based are not “substantially similar” to a photograph by Rentmeester. The decision was handed down yesterday.
The case underscores one of the basic principles of copyright law, which is that copyright protects only the expression of ideas, and not the ideas themselves.
At issue in the case were Nike’s famous Jordan Brand logo, which is a silhouette of basketball star Michael Jordan leaping dramatically with a basketball; and a photograph of Jordan in a similar pose, which Nike produced in the mid 1980s for use on billboards, merchandise, and in advertising.
Both images were inspired by a photograph Rentmeester shot of Jordan for LIFE magazine. In 1984, Nike paid Rentmeester $150 for a license to use the image “for slide presentation only.” Afterwards, Nike agreed to pay Rentmeester $15,000 for a two-year license to use a photograph it produced on the basis of Rentmeester’s image. But the company continued to use its photograph after the license expired. Nike created the Jordan Brand logo in 1987, and has used it ever since.
Rentmeester sued for copyright infringement in January 2015. A federal court in Oregon rejected Rentmeester’s claim several months later on the grounds that the Nike logo was not “substantially similar” to Rentmeester’s original photograph. The appeals court has now reached the same conclusion, explaining in its written ruling that Rentmeester did not “plausibly allege that Nike copied enough of the protected expression from his photo to establish unlawful appropriation.”
The appeals court reiterated in its decision that US Copyright law protects only the expression of copyrighted works, and not the ideas or concepts behind them. The court went on to explain that Rentmeester “cannot copyright the pose itself and thereby prevent others from photographing a person in the same pose. He is entitled to protection only for the way the pose is expressed in his photograph, a product of not just the pose but also the camera angle, timing, and shutter speed Rentmeester chose.”
The appeals court said that his claim failed because “there were differences in selection and arrangement of elements, as reflected in the photos’ objective details.”
In particular, the court concluded from its comparison of the two images that Nike’s photographer didn’t copy the details of the pose as expressed in Rentmeester’s photo. “[H]e borrowed only the general idea or concept embodied in the photo. Thus, in each photo Jordan is holding a basketball above his head in his left hand with his legs extended, in a pose at least loosely based on the grand jeté. The position of each of his limbs in the two photos is different, however, and those differences in detail are significant because, among other things, they affect the visual impact of the images. In Rentmeester’s photo, Jordan’s bent limbs combine with the background and foreground elements to convey mainly a sense of horizontal (forward) propulsion, while in the Nike photo Jordan’s completely straight limbs combine with the other elements to convey mainly a sense of vertical propulsion. While the photos embody a similar idea or concept, they express it in different ways.”
The appeals court noted other differences between the Rentmeester photograph and the Nike photograph, including different lighting, different backgrounds, different positioning of the basketball hoops in both photographs, and differences in the framing: Jordan dominates the Nike photograph at the center of the frame, and appears as a small figure slightly left of center in the frame of Rentmeester’s photograph.
The differences in the selection and arrangement of elements, the court concluded, “preclude…a finding of infringement.”